But, what shall be the proof required of those, between whom the suit is to be conducted, is a question? Whether, for example, it should be made by the Duel, or by any other mode; or whether the Pledges can, by the oaths of such a number of men as the Court may require, deny their undertaking? With respect to this point, some persons assert, that the Creditor himself, by his own oath and that of lawful Witnesses, can by Law prove it against the Pledges, unless the Pledges will prevent him from the oath; and this may now be done when the Demandant appears prepared to take the oath, though formerly it ought to have been done before the Law was waged. Thus in such case the Duel may be resorted to. CHAP. VI. A Loan[378] is sometimes made, upon the Credit of a putting in Pledge. When a Loan of this description takes place, sometimes moveables, as Chattels, are put in pledge: sometimes immoveables, as Lands and Tenements, and Rents, whether consisting in Money, or in other things. When a Compact is made between a Creditor and Debtor, concerning the putting any thing in pledge, then, whatever be the mode of pledging, the Debtor upon his receiving the thing lent to him, either immediately delivers possession of the Pledge to the Creditor, or not. Sometimes also a thing is pledged for a certain period, sometimes indefinitely. [Footnote 378: _Mutuum—quia, ita a me tibi datur, ut ex meo tuum fiat._ (Justin. Instit. L. 3. t. 15.) _Vinnius_ terms this _bella allusio, non vera vocis originatio_. Dr. Wood observes, as to the Term itself, it hath no one particular name in the English language.] Again, sometimes, a thing is pledged as a Mortgage, sometimes not. A pledge is designated by the Term Mortgage,[379] when the fruits and Rents, which are received in the interval, in no measure tend to reduce the demand for which the pledge has been given. [Footnote 379: With this explanation the Regiam Majestatem (L. 3. c. 2.) and the _Grand Norman Custumary_ (c. 113.) literally coincide—though it differs from that given by Littleton, and followed by Coke, Craig, and Blackstone. (Co. Litt. 205. a. 2 Comm. Bl. 157. Craig Jus Feud. L. 2. D. 6. s. 27.) What is the more remarkable, Lord Coke expressly contrasts the _mortuum vadium_ to the _vivum vadium_. _Vivum autem dicitur vadium quia nonquam moritur ex aliquâ parte quod ex suis proventibus acquiratur._ But assuredly, if the term mortgage is to be collected from its forcible contrast to these words, Glanville’s explanation is infinitely preferable to that given by Lord Coke.]